Fear Not Law Articles: P. v. Bergdoll

P. v. Bergdoll

Filed 10/10/08 P. v. Bergdoll CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

SHAWN CHARLES BERGDOLL,

Defendant and Appellant.

F053671

(Super. Ct. No. 1095249)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, Shawn Charles Bergdoll, was charged in the first amended information with possession of marijuana for sale (Health & Saf. Code, 11359, count one), cultivation of marijuana (Health & Saf. Code, 11358, count two), and possession of methamphetamine for sale (Health & Saf. Code, 11378, count three). The information further alleged an enhancement that appellant possessed a firearm (Pen. Code, 12022, subd. (a)).^{^[1]} After a jury trial, appellant was acquitted of counts one and three but found guilty of count two. The jury found the enhancement true. The trial court found this case was not appropriate for treatment pursuant to Proposition 36. The court suspended imposition of sentence and placed appellant on probation for three years upon various terms and conditions, including that he serve 180 days in jail. On appeal, appellant contends his cultivation was a nonviolent drug possession offense that qualified him for probation without incarceration under Proposition 36. We disagree and affirm the judgment.

FACTS

On July 10, 2005, Modesto police officers obtained permission to search appellants home on Peek from a co-resident named Barry Dahlinger. When they entered the home, they smelled the strong odor of marijuana. There were fans blowing in the home and, from underneath doorways, the officers could see light illuminating rooms. Dahlinger would not grant officers permission to search the rooms with closed doors. The officers found marijuana in the kitchen.

Dahlinger told investigators appellant came to the home two or three times a week and that appellant was growing marijuana in other residences in Modesto. Officers went to a second home on Merle. The residents allowed the officers to enter, but they found nothing there. Dahlinger took the officers to a residence on West Mont and told them appellant was growing marijuana there. The officers obtained search warrants for the Peek and West Mont residences.

The Peek residence is a one-story home. The West Mont address is two stories. In executing the search warrant at the West Mont home, officers saw lights from underneath the door jams in rooms on the second floor. Officers found several racks with immature marijuana plants and a lighting system shining on them in a laundry room. There were 178 immature plants. There were lights, plants, ballasts, air filters, fans, and timers found in bedrooms upstairs and a bathroom.

Fourteen mature, so-called mother marijuana plants, were growing in one bedroom. In another room, investigators found 74 marijuana plants. There were also irrigation tub[e]s and growing tubs. In a different room there were 100 plants in the budding stage. Officers also found 58 stems of budding marijuana drying on the first floor of the home. Officers booked into evidence $1,975 in currency. Before leaving the residence, officers found $19,900 in currency, a digital scale, and 8.8 grams of crystal methamphetamine in a built-in drawer. At the West Mont residence, an officer found a loaded revolver in a holster. Between the two residences, officers found 550 marijuana plants.^{^[2]}

When questioned, appellant told one investigator he was the only one involved in the cultivation of marijuana. Appellant explained that he was disabled and all of the marijuana was for personal use. A medical marijuana card for appellant was found at the West Mont residence. Appellant told the investigator he did not know who owned the methamphetamine and $19,900.

DISCUSSION

Appellant asserts cultivation is a nonviolent drug possession offense and the court erred in not providing him a Proposition 36 disposition, which mandates probation and drug treatment, rather than imprisonment.^{^[3]} We disagree.

A defendant is only eligible to receive the benefits of probation and treatment under Proposition 36 if he is convicted of a nonviolent drug possession offense. ( 1210.1, subd. (a).) The term nonviolent drug possession offense does not include the possession for sale, production, or manufacturing of any controlled substance. ( 1210, subd. (a).) Cultivation is not a nonviolent drug possession offense within the meaning of section 1210, subdivision (a), because it involves the production of a controlled substance. (Ibid.; People v. Sharp (2003) 112 Cal.App.4th 1336, 1338-1340 (Sharp).) Appellant was producing marijuana in very large quantities at two residences. He was statutorily ineligible to receive the benefits of Proposition 36.

Appellant urges this court to disagree with the holding in Sharp that cultivation is not covered under Proposition 36 because it is something beyond simple nonviolent possession. (Sharp, supra, 112 Cal.App.4th at pp. 1338-1340.) Under the plain language of section 1210, subdivision (a), cultivating marijuana is not a nonviolent drug possession offence as that phrase is used in section 1210.1.

Appellant further argues we should find section 1000, the diversion statute, to be analogous to section 1210. This contention was reviewed and rejected in People v. Wheeler (2005) 127 Cal.App.4th 873, 880-881 which held that the drafters of section 1210 did not pattern it after section 1000. We agree with the analysis in Sharp and Wheeler and apply their holdings here. We decline appellants invitation to reach a contrary result. The trial court did not err when it found appellant ineligible for treatment under Proposition 36.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.

^{^[1]} Unless otherwise indicated, further statutory references are to the Penal Code.

^{^[2]} Growing marijuana plants and dried marijuana were both located at the Peek residence.

^{^[3]} Proposition 36 is codified in sections 1210, 1210.1, and 3063.1.

Description	Appellant, Shawn Charles Bergdoll, was charged in the first amended information with possession of marijuana for sale (Health & Saf. Code, 11359, count one), cultivation of marijuana (Health & Saf. Code, 11358, count two), and possession of methamphetamine for sale (Health & Saf. Code, 11378, count three). The information further alleged an enhancement that appellant possessed a firearm (Pen. Code, 12022, subd. (a)).[1] After a jury trial, appellant was acquitted of counts one and three but found guilty of count two. The jury found the enhancement true. The trial court found this case was not appropriate for treatment pursuant to Proposition 36. The court suspended imposition of sentence and placed appellant on probation for three years upon various terms and conditions, including that he serve 180 days in jail. On appeal, appellant contends his cultivation was a nonviolent drug possession offense that qualified him for probation without incarceration under Proposition 36. Court disagree and affirm the judgment.
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